HARIHAR MOHANTY Vs. UNION OF INDIA

JUDGEMENT

(1.) IN this application filed under Articles 226 and 227 of the Constitution of India, the petitioners seek a declaration that the provision in Sub -section (3) of Section 166 of the Motor Vehicles Act, 1988, is ultra vires the Constitution of India and for quashing of the order dated 19.5.1992 passed by the Second Motor Accidents Claims Tribunal, Cuttack, in M.V. Misc. Case No. 162 of 1989 (Annexure 2). In the said order the Tribunal declined to grant the petitioner's prayer to be substituted in the case, instead accepted the petition as a fresh claim petition subject to limitation. The operative portion of the order reads: It is alleged that the cause of death of the deceased has a direct link with the injuries sustained in the accident. Hence the fresh claim petition is accepted subject to limitation which will be decided on merit after hearing the other side and the petitioners are directed to take return of the petition and file the same before the 1st M.A.C.T., Cuttack, for registration of the case as per the procedure being followed at present.

(2.) THE factual backdrop of the case necessary to appreciate the contentions of the petitioners may be stated thus: One Kanhu Charan Mohanty filed a petition claiming compensation for the injuries sustained by him in the automobile accident which took place on 19.11.1988 involving the vehicle bearing registration No. OJC 7901 (Matador van). The injured initially claimed Rs. 5,50,000/ - as compensation from the owner of the vehicle (opposite party No. 4) and the insurer New India Assurance Co. Ltd. (opposite party No. 3) on different counts like medical expenses, pain and suffering, loss of future prospects of income, etc. The application was registered as M.V. Misc. Case No. 162 of 1989. During pendency of the case, the injured applicant died on 12.1.1992, as alleged by the petitioners, due to injuries sustained in the accident. Thereafter, on 10.2.1992 the petitioners in the present case, who are the parents of the deceased, filed an application for being substituted in place of the claimant alleging, inter alia, that late Kanhu Charan Mohanty, who was seriously injured in the accident on 19.11.1988, was completely paralysed and was confined to bed, that he was under constant treatment from the date of accident till the date of his death on 12.1.1992; and that death of the deceased was due to the injuries sustained in the accident. The petitioners claimed that as parents of the deceased, they are his legal representatives. It was further stated in the application that the applicants had spent a substantial amount to the tune of Rs. 80,000/ - for treatment of their son (deceased). The application was disposed of by the Tribunal by order dated 19.5.1992. The said order is assailed in the present writ application.

(3.) MR . M. Sinha appearing for opposite party No. 3. the insurance company, supported the order passed by the Tribunal.